Police v Loibl [2023] WSDC 3 (4 May 2023)

IN THE DISTRICT COURT OF SAMOA
Police v Loibl [2023] WSDC 3

Case name:	Police v Loibl
Citation:	[2023] WSDC 3
Decision date:	4 May 2023
Parties:	POLICE (Informant) v FATA PAUL LOIBL (Defendant)
Hearing date(s):	Hearing: 9th March 2023 Submissions: 12th April 2023
File number(s):
Jurisdiction:	CRIMINAL (District Court)
Place of delivery:	District Court of Samoa, Mulinuu
Judge(s):	Judge Talasa Atoa-Saaga
On appeal from:
Order:	I find the Defendant guilty of the charge of delivering a firearm namely a 12 gauge pump action shotgun registered under his name to Salale Moananu aka Iuli Salale Moananu Salale, a male of Vaitele Fou and Falefa, who is not entitled to possess such firearm without a permit for possession.
Representation:	Senior Sergeant Stanley for Prosecution P. Fepuleai for the Defendant
Catchwords:
Words and phrases:	“Not entitled to possess firearm without permit of possession” – “Dealers in arms and ammunition to be licensed” – “Permits for possession” – “registration of firearms”.
Legislation cited:	Arms Ordinance 1960, ss. 3; 7; 7(1); 7(2); 7(4); 9; 9(1).
Cases cited:
Summary of decision:

IN THE DISTRICT COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

P O L I C E

Informant

AND:

FATA PAUL LOIBL

Defendant

Representation: Senior Sergeant Stanley for Prosecution

P. Fepuleai for the Defendant

Hearing Date: 9^th March 2023
Submissions: 12^th April 2023
Decision: 4^th May 2023

DECISION

INTRODUCTION

1. The Defendant has been charged under sections 7(1), (2) and (4) of the Arms Ordinance 1960. The particulars of the charge are:
   • “At Lepea on the 1^st day of July 2022, he delivered a firearm namely a 12 gauge pump action shot gun, which is registered under his name to Salale Moananu aka Iuli Salale Moananu Salale, male of Vaitele Fou and Falefa, who is not entitled to possess such firearm without a permit for possession.”
2. The Defendant entered a Not Guilty plea to the charge. The Defendant does not dispute that he did leave the firearm registered under his name with Salale Moananu but he has raised Section 9 of the Arms Ordinance 1960 as his defence to the charge.

PROSECUTION’S EVIDENCE

3. The Prosecution called three witnesses Sergeant Junior Afereti and Corporal Tyrone Mamaia and Sergeant Ioane Tavai.
4. On 2^nd July 2022, Sergeant Ioane Tavai and Corporal Tyrone Mamaia responded to a call at the Aquatic Centre at Tuanaimato. They arrived and were told that there was a firearm at the back of a Hilux Pickup Vehicle registered number SSFA 02.
5. Corporal Mamaia and Sergeant Tavai discovered that there was a 12 gauge firearm at the back of the vehicle. They took the firearm from the vehicle after removing the bullets that were inside the firearm and took the firearm to the office. They did a search and confirmed that the firearm was registered to Fata Paul Loibl. The firearm was surrendered to the Arms Tactical Section
6. On cross-examination, Sergeant Junior Afereti conceded that Salale Moananu had a license to own firearms.

DEFENCE’S EVIDENCE

7. Fata Loibl has had a dealer’s license for 8 years. His license has been suspended pending the case.
8. On the 31^st of March 2022, he asked his wife to prepare a cheque for registering his firearm. When he went to register his license, he was informed that he could not register due to SOE restrictions.
9. On the 1^st of July 2022, Salale Moananu picked up Fata from his house. Fata also brought his gun. They had planned to try out Fata’s gun at Salale’s farm at Falefa. On their way to Falefa, Fata received a call from his employee that they needed the key to the storage place at Vaitele. He requested that they return to Vaitele to drop off the key.
10. When they arrived at Vaitele, there were some Chinese businessmen who expressed an interest to buy one of his properties. He informed Salale to go without him to Falefa. It was only later in the evening when he remembered that he had left his gun in Salale’s vehicle. He called Salale to enquire about his gun.
11. It was during the Shooting Federation Tournament a few days later that he became aware of the incident involving Salale having the firearm in his possession. Salale Moananu is the Secretary of the Federation.
12. On cross-examination, he conceded that he did not call Salale to remind him of his gun that he had forgotten at the back of Salale’s vehicle.

SUBMISSIONS

13. The Prosecution submits that the Defendant knowingly delivered the firearm to Salale Moananu without a license. He left his gun with Salale in his car and allowed Salale to take possession of the firearm without a permit.
14. Defence Counsel raised a novel argument on behalf of the Defendant. Under section 9(1) of the Arms Ordinance 1960, Salale Moananu only had possession of the firearm for less than 7 days and therefore the Defendant is not liable for delivery of the firearm as the gun was only in the possession of Salale Moananu for less than 7 days.

LAW

15. There are three key provisions under the Arms Ordinance 1960 that have come under the scrutiny of the Court. These key provisions are Sections 3, 7, and 9 of the Arms Ordinance 1960.
16. Section 3. Dealers in arms and ammunition to be licensed –
    • (1) A person must not sell or offer for sale, or have in the person’s possession for sale, in the way of the person’s business, any firearms or ammunition, or manufacture for sale any firearms, unless the person is the holder of a dealer’s license issued to him or her by the Arms Officer.
    • (2) A dealer’s license may, on payment of the prescribed fee, be issued in respect of both firearms and ammunition, or in respect of ammunition only, and each license shall be issued only in respect of one place of business.
    • (3) (Repealed by section 10 of the Arms Amendment Ordinance 1978).
    • (4) A dealer’s license may be issued for any period not exceeding 1 year and expires on 31 March next ensuing after the issue of the license and may be revoked by the Arms Officer if he or she thinks fit.
    • (5) A person who breaches this section commits an offence and is liable on conviction to a fine not exceeding 50 penalty units or imprisonment for a term not exceeding 5 years, or both.
17. Section 7. Permits for possession –
    • (1) Subject to this Ordinance, no person shall, whether by way of purchase or in any other manner, procure possession of any firearm or ammunition otherwise than pursuant to a permit under this section.
    • (2) No person shall, whether by way of sale or in any other manner, deliver possession of any firearm or ammunition to any person other than to a licensed dealer authorised to deal in firearms and ammunition or ammunition only, as the case may require, or to a person entitled to obtain the firearm or ammunition by virtue of any permit referred to in subsection (1).
    • (3) A permit under this section may be issued by the Arms Officer on payment of the prescribed fee.
    • (4) A person who breaches or attempts to breach this section commits an offence and is liable on conviction to a fine not exceeding 20 penalty units or to imprisonment for a term not exceeding 2 years, or both, and the burden of proving the existence and terms of any such permit as aforesaid lies on the defendant.
    • (5) A permit issued under this section remains in force for a period not exceeding 7 days, as may be specified in the permit.
    • (6) A permit issued under this section may be revoked by the Arms Officer.
    • (7) Nothing in this section applies to firearms known as humane killers.
18. 9. Registration of firearms –
    • (1) A person, other than a licensed dealer, must not be in possession of any firearm for a period longer than 7 days unless the person is registered as the owner of the firearm under this section.
    • (2) Registration under this section is effected by paying the prescribed fee and obtaining a certificate of registration from the Arms Officer.
    • (7) A certificate of registration issued under this section expires on 31 March next following the issue thereof and may be renewed by application made to a member of the Police and on payment of the prescribed fee. Such application shall contain such particulars as may be prescribed by the Arms Officer. (7A) For the avoidance of doubt, a certificate of registration expires on 31 March each year and, subject to subsection (1), it is an offence under subsection (11) for a person other than a licensed dealer to fail to renew a certificate of registration or to be in possession of a firearm without a certificate of registration after that date
    • (11) A person who breaches this section commits an offence and is liable on conviction to a fine not exceeding 50 penalty units or to imprisonment for a term not exceeding 2 years, or both. In any prosecution for the offence, if the defendant is proved to have been in possession of the firearm, the burden of proving that the defendant was the holder of a valid certificate of registration in respect thereof as aforesaid, or that the defendant has not been in possession thereof for more than 7 days, or that the defendant was lawfully in possession thereof pursuant to this section, lies on the defendant.
19. There are different permits under each of these sections. Under Section 3, there is a permit for the sale of firearms and ammunition and this must be paid before the 31^st March every year.
20. Under Section 7, there is a permit for the purchase or possession of a firearm. A person cannot sell or deliver into possession of any person any firearm unless that person that he is delivering the possession of the firearm to is a licensed dealer or a person who has a permit for the purchase or possession of a firearm under Section 7.
21. Under Section 9, a person must not be in possession of any firearm for a period longer than 7 days unless that person is the owner of the firearm or has a permit issued under Section 9 of the Ordinance. A person must pay a prescribed fee for registration under Section 9. In any prosecution, a person found in possession of the firearm bears the burden of proving that he has a valid certificate as a licensed dealer or that he has not been in possession for more than 7 days, or that he is lawfully in possession under Section 9.
22. The Defendant has been charged under Section 7(2) for the delivery of the firearm to Salale Moananu. He can only deliver the firearm to Salale Moananu if Salale Moananu is a licensed dealer or a person who has a permit under Section 7. The Defendant has raised Section 9(1) as a defence in that Salale Moananu only had the firearm for less than 7 days therefore he cannot be held liable.
23. In my respectful view, the Defendant cannot raise Section 9(1) as a defence to Section 7(2). Section 9(1) is a valid defence for a Defendant who has been found in possession of a firearm other than the owner of the firearm. It is a valid defence for Salale Moananu who was found with the firearm in his possession to raise.
24. As for the Defendant, he had to prove as a defence that Salale Moananu is an arms dealer under Section 3 or that he had a permit under Section 7 of the Ordinance. There is no evidence adduced that Salale Moananu has a dealer’s license or a permit issued under Section 7 for the possession of the firearm in question.

CONCLUSION

25. I find the Defendant guilty of the charge of delivering a firearm namely a 12 gauge pump action shotgun registered under his name to Salale Moananu aka Iuli Salale Moananu Salale, a male of Vaitele Fou and Falefa, who is not entitled to possess such firearm without a permit for possession.

JUDGE SAAGA
DISTRICT COURT JUDGE